HS2 gets the green light – again!

When the High Speed Rail (London – West Midlands) Act received the Royal Assent in 2017 one might have been forgiven for thinking that the legal and political shenanigans were over and work would begin in earnest. However, arguments over ever increasing costs meant that the ‘notice to proceed’ (which authorises the contractors to move in with their earth movers and commence the major civil engineering phase) has been continually delayed. This has left contractors fiddling around trying to find every scrap of preparatory work they can do within their current authorisations such as site clearances, building compounds, construction of access roads and diversion of utilities. The change of Conservative Party leadership brought about by infighting over Brexit then cast doubt over whether there was still a political consensus in favour of delivering the project. Despite his well known enthusiasm for major infrastructure projects the Prime Minister, Boris Johnson, was not prepared to endorse the scheme the moment he took office. Instead, he announced that an  independent panel, under the chairmanship of Douglas Oakervee, would be appointed to advise on whether there was still a case for proceeding with the project. The report (which was leaked before the Government formally wished to release it) found in favour of proceeding with both phases of the scheme despite the escalating costs: see ‘Oakervee Review.’ This week , of course, there was a huge media splash when the Prime Minister enthusiastically endorsed the scheme in Parliament with a characteristic flourish: HC Deb 11 February 2020, vol 671, cols 712-714.

At present only phase 1 of the scheme from London to Birmingham has been authorised by Act of Parliament. Phase 2A from Birmingham to Crewe, the first leg of the extension to Manchester, is to be brought forward and effectively treated as part of the first phase. A Bill covering phase 2A was introduced to the House of Commons on 17 July 2017  (the High Speed Rail (West Midlands – Crewe Bill) 2017-19. It had got as far as the appointment of a Select Committee in the House of Lords to hear petitions before the dissolution of Parliament ahead of the December 2019 General Election. Given the Prime Minister’s desire to bring forward stage 2A and merge it with stage 1 there can be no doubt that a revival motion can be expected any day now in order to set the legislative wheels turning again.

The phase 1 Act from London to Birmingham withstood two major legal challenges, both of which were dealt with on these pages. In R (on the application of HS2 Action Alliance Limited) (Appellant) v The Secretary of State for Transport and another (Respondents) [2014] UKSC 3 the Supreme Court held, inter alia, that the hybrid Bill procedure was compatible with the requirements of environmental assessment: see my post entitled ‘HS2 win in Supreme Court‘. The exigencies of Environmental Assessment came to the fore again in R ( on the application of HS2 Action Alliance, London Borough of Hillingdon) v Secretary of State for Transport [2014] EWCA Civ 1578: see my post entitled ‘HS2, safeguarding directions and strategic environmental assessment.’ Here it was held that safeguarding directions, which restrict development along the line of the proposed route, do not trigger the need for an environmental assessment.

Despite the fact that phase 1 of the scheme has already been authorised by way of an Act of Parliament and that the procedures for complying with environmental assessment have been endorsed by the Supreme Court, the Daily Mail reported that the television presenter and naturalist, Chris Packham, had been in consultations with Leigh Day & Co regarding a possible legal challenge to the Government’s decision to continue with the project in the light of the Oakervee Review: and this is indeed borne out by an article on Leigh Day & Co’s website. The Oakervee review is criticised as not constituting a thorough analysis of the environmental arguments. We have to wait and see what precise arguments they come up with but it would certainly constitute a bold challenge.

If (and I emphasise ‘if’) any challenge focused on the Oakervee Review it would attach huge weight to the report and regard it as hitting the reset button on the entire decision making process. The intention of the Government in commissioning the review appears to have been more about checking that it still wanted to adhere to its original decision rather than starting the entire process again from scratch as though it was operating in virgin territory; as the report notes at [2.3], ‘it is important to note that any examination of the project does not start from a blank sheet of paper.’ Is a decision as to (in the words of the report) ‘whether and how to proceed‘ (emphasis added) with an existing decision the same thing as making that decision in the first place? If I double check that I want to keep the jumper I have just bought before I lose the receipt (because I am concerned that I may have spent too much money on it!), am I required to take the jumper back to the shop in any event and start the entire jumper buying decision making process again including weighing up the pros and cons of different colours?  Indeed such an approach could set a precedent whereby it is effectively impossible to double check or review major decisions without going back to square 1 and starting all over again; this would lead to paralysis in the delivery of major projects and might actually dissuade decision makers from displaying any hesitation or conducting prudent last minute reviews and adjustments. Moreover, it is difficult to see how the existence of an Act of Parliament, enacted according to procedures which were endorsed by the Supreme Court, can be airbrushed out of the equation.